In Kirkland v. State, the Georgia Court of Appeals held that a child's out-of-court statements were admissible under the child hearsay statute, and that they did not violate the Sixth Amendment's confrontation clause, even when the child was unresponsive on the witness stand at trial.
The defendant was convicted of aggravated child molestation following an alleged incident involving his girlfriend’s 4 year-old niece. The child alleged that the defendant had made sexual contact with her, first telling her great-grandmother and later her mother. The child’s mother contacted law enforcement who conducted an investigation of the allegation which included a forensic interview of the child. During the interview, she repeated her allegations which were consistent with what she had previously told her relatives.
At trial, the child was unresponsive to questioning so her out-of-court statements were admitted via the testimony of her mother and great-grandmother as well as through a recording of her forensic interview. On appeal, the defendant argued that, under Crawford v. Washington, the admission of this testimony violated his Sixth Amendment confrontation rights since the child’s unresponsiveness deprived him of the opportunity to cross-examine her at trial.
The Court of Appeals affirmed the conviction and noted that the child’s statements to her mother and great-grandmother were not testimonial in nature and thus did not implicate the Sixth Amendment’s confrontation clause. This, however, would not apply to the statements in the forensic interview which were clearly testimonial in nature since they were obtained in anticipation of prosecution. The Court’s opinion fails to address the admissibility of these statements.
Since the child was unresponsive at trial, it is doubtful that the defendant actually had any meaningful opportunity to cross examine her. Notably, in support of the Court’s decision that the child’s unresponsiveness did not violate the Sixth Amendment, it relied almost exclusively on cases decided prior to the U.S. Supreme Court’s decision in Crawford.
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